Appeal from the Order Entered January 7, 2008, In the Court of Common Pleas Of Cambria County, Criminal at No. CP-11-CR-0000027-2007.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BOWES, FREEDBERG and POPOVICH, JJ.
¶ 1 The Commonwealth appeals from the order entered on January 7, 2008, by the Honorable Timothy P. Creany, Court of Common Pleas of Cambria County, which granted in part and denied in part the motion to suppress evidence filed by Appellee Parris Pridgen.*fn1 After review, we affirm.
¶ 2 The relevant facts and procedural history of this matter are as follows. On March 9, 2006, a confidential informant ("CI") purchased 1.35 grams of cocaine from the Appellee. The controlled buy was part of an investigation conducted by the Johnstown Police Department, the federal Organized Crime Drug Enforcement Task Force ("OCDEFT"), the Cambria County Drug Task Force, the Pennsylvania State Police, and the Federal Bureau of Investigation ("FBI"). The buy took place in the vehicle of an undercover officer, Trooper Karen Halligan, who was present throughout. During the operation, the CI, who is now deceased, wore a monitoring device which recorded the conversation. Trooper Halligan also utilized a monitoring device which did not record and was deployed solely for officer safety. While the intercept was consensualized under federal authority, no cross-authorization was obtained in conformity with any provision of the Pennsylvania Wiretapping and Electronic Surveillance Control Act ("WESCSA"), 18 Pa. Cons. Stat. Ann. §§ 5701-5782.
¶ 3 On December 13, 2007, a hearing was held on Appellee's motion to suppress. Appellee did not offer any evidence at the hearing. The Commonwealth offered the testimony of Detective Thomas Owens of the Johnstown Police Department, who was the officer who monitored the recording device, and FBI Special Agent Arnold Bernard, who obtained the federal authorization for the intercept and who fitted the CI with the recording device. Trooper Halligan did not testify at the hearing and her written report was not made part of the record. On January 7, 2008, Judge Creany issued an order which granted in part and denied in part the motion to suppress. The order excluded "any and all evidence pertaining to the wiretap and the taped conversations" but permitted introduction of any "controlled substance evidence procured by the Commonwealth by means unrelated to the wire interception." Suppression Court Order of January 7, 2008.
¶ 4 The Commonwealth filed a timely notice of appeal. The Suppression Court ordered it to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, the Commonwealth filed the 1925(b) statement, and the suppression court subsequently issued its opinion.
¶ 5 On appeal, the Commonwealth raises the following issue for our review:
Whether the suppression court erred by excluding (as the term "exclude" is contemplated by 18 Pa. Cons. Stat. § 5721.1(b)) ". . . any and all evidence pertaining to the wiretap and the taped conversation . . ." inasmuch as, for purposes of the statutory exception to exclusion at 18 Pa. Cons. Stat. § 5721.1(c)(6), the Commonwealth demonstrated by a preponderance of the evidence application of such statutory exception? Commonwealth's Brief at 4.
¶ 6 Our standard review when the Commonwealth appeals from an adverse suppression ruling is well settled. A reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Huntington, 924 A.2d 1252, 1254 (Pa. Super. 2007), appeal denied, 931 A.2d 656 (Pa. 2007). Further, the construction of a statute raises a question of law. On questions of law, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003).
¶ 7 As an initial matter, we wish to clarify the precise specifications of the suppression order. It appears that the Commonwealth believes that the order prohibits it from calling Trooper Halligan to testify as to any conversation she overheard during the controlled buy. However, the Suppression Court specifically notes in the 1925(a) Opinion that "evidence pertaining to the wiretap was excluded from trial but the Order permitted the Commonwealth to present evidence at trial obtained by unrelated means, including the controlled substance itself and the testimony of the undercover police officer involved." Suppression Court Opinion dated 3/05/08 at 1. Thus, the question before this Court is solely whether the trial court erred in excluding the recording of the wire tap itself and any transcripts resulting therefrom.
¶ 8 The Commonwealth contends that the suppression court erred in excluding the evidence obtained via intercept because the intercept fell within the exception to WESCA set forth in Pa. Cons. Stat. Ann. § 5721.1(c)(6) as follows:
Evidence shall not be deemed to have been derived from communications excludable under subsection (b) if the respondent can demonstrate by a preponderance of the evidence that the Commonwealth or the respondent had a basis independent of the excluded communication for discovering such evidence, or that such evidence would have been inevitably discovered by the Commonwealth or the respondent absent the excluded communication.
18 Pa. Cons. Stat. Ann. § 5721.1(c)(6). This Court recently held that the following considerations should ...